Terms of Service for ASF Mobile

This  ASF Mobile App Addendum (this “Addendum”) is made a part of the ASF Payment Solutions Order Form (the “Order Form” and together with this Addendum and the Terms of Service, the “Agreement”), by and between American Service Finance, LLC d/b/a ASF Payment Solutions (“Company”) and the Customer set forth in the Order Form (“Customer”), with respect to Customer’s use of ASF’s mobile application services, whether white-labelled (“Branded Application”) or standardized (“Standard Application” and together with the Branded Application, the “Application”). Company reserves the right to change and revise this Addendum at any time by amending this page without any express notice.

By executed the Order Form and using the Application services, Customer and Company hereby agree as follows:

1. BACKGROUND
   1.1. Company has developed a club business management platform (“Platform”) which allows Customer and its Users (as defined below) to provide clients (“Clients”).
   1.2. Company has also developed the Application which allows the Customer and its Users to engage with Clients through a mobile application.
   1.3. Company has also developed the Branded Application to allow Customer to ‘white-label’ (by using a web sub-domain of the Platform but which operates under the web domain name of Company) which has the effect of placing the Customer’s trademarks and logo on to and to front the Application and therefore making the Application and Platform available to Customer, its Users, and Clients through a Customer-branded mobile application.
   1.4. By purchasing the Application, the terms of this Agreement (including this Addendum) will govern and apply to your purchase and ongoing use of the Service, which including the Application.
2. DEFINITIONS
   Capitalized terms not otherwise defined in this Addendum shall have the meaning set forth in the Terms of Service. The following definitions apply to this Addendum.
   Documentation: means software information, being technical information used, or useful in, or relating to the design, development, use or maintenance of any version of the Application or use of the Platform.
   User: any person the Customer permits access to use the Application to gain access to the Service and/or who has access to the Service.
   User Account: the account held and maintained with the Customer by any User as a prerequisite to accessing and using the Application on the Platform to gain access to the Service and in relation to which the User has first agreed the Terms of Use.
   User Content: all text, information, data, images, audio or video material, in whatever medium or form, inputted by any User in relation to the use of the Application or the Service.
   Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighboring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world, and Intellectual Property Rights include, without limitation, any Marks.
   Mark Guidelines: the mark guidelines set out in Schedule 1.
   Marks: any trademarks, trade names, service marks, trade dress, logos, URLs and domain names, any identifying slogans and symbols, any abbreviation, contraction or simulation of any of the aforementioned items and the “look and feel” of a party to this Agreement, whether or not registered.
   Normal Business Hours:  8.00 am to 6.00 pm local MT time, each business day.
   Open-Source Software:  any software licensed under any form of open-source license meeting the Open Source Initiative’s Open Source Definition (set out at www.opensource.org) or any libraries or code licensed from time to time under the General Public License (as described by the Free Software Foundation and set out at www.gnu.org), or anything similar, included or used in, or in the development of, the Service or the Software, or with which the Service or the Software is compiled or to which it is linked.
   Platform: Company’s infrastructure and cloud computing platform and runtime environment to which access is given by the Application being and upon which the Service are offered and delivered to Users.
   Security Event: any unauthorized third party access to the Service or the Platform; or any use of the Service by the Customer or any User that is in breach of the Terms of Use and has the potential to materially impact Company’s business activities, the Platform, the Service or use of the Service by any User or other customer of Company or any of that User’s or Customer’s Clients; or any Vulnerability or Virus introduced into the Platform or the Service by (or facilitated through) the Customer or any User.
   Software: the online software applications and tools provided by Company from time to time as part of the Service, including any updates Company may make to such applications and tools from time to time.
   Terms of Use: those Terms of Use ( which are required to be agreed by authorized end users and Users before they have access to the Platform and the Service.
   Virus:  any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
   Vulnerability:  a weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
3. SUBSCRIPTIONS AND USE
   3.1. Subject to the Customer’s compliance with this Agreement and payment all Fees, subject to the terms of this Agreement, Company hereby grants to the Customer:
   
   

   3.1.1. a worldwide, non-exclusive, non-transferable, non-sub licensable, limited license for Customer, Uses and its Clients to access and use the Application;

   3.1.2. if Customer purchases a Branded Application, a non-exclusive, non-transferable right during the term of this Agreement to: (a) place and integrate the Branded Application so as to front and ‘white label’ the Platform so as to enable access thereto to Users branded with Customer’s icon and branding Marks; (b) permit Users with a User Account to use the Service and the Branded Application in accordance with the Terms of Use; (c) to provide the Service, solely as integrated through the Branded Application, to Users and to permit those Service to be used by Users in association with the Customer’s Marks; and (d) to promote the Branded Application as a web sub-domain of Company which gives access to the Platform and the Service to prospective and actual Users.

   3.2. In relation to its Users, the Customer undertakes that:

   3.2.1. Customer will not allow or suffer any User Account to be used by more than one individual User unless it has been reassigned in its entirety to another individual User, in which case the prior User shall no longer have any right to access or use the Service;

   3.2.2. it shall disable any User’s access to the Service promptly upon termination or suspension of such User’s User Account or services contract with the Customer or if such User does (or omits to do) anything which then places the Customer in breach of any term of this Agreement;

   3.2.3. it shall maintain an up-to-date list of current Users and provide such list to Company within five business days of Company’s written request at any time or times;

   3.2.4. it shall permit Company or Company’s designated auditor to audit the Service taken through the Application by the Customer and its Users in order to establish the name and password of each User and Company’s data processing facilities to audit compliance with this Agreement. Such audit may be conducted no more than once per quarter, at Company’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;

   3.2.5. if any such audit reveals that any password has been provided to any individual who is not an User, then without prejudice to Company’s other rights, the Customer shall promptly disable such passwords and Company shall not issue any new passwords to any such individual; and

   3.2.6. if any such audit reveals that the Customer has underpaid Fees for Service to Company, then without prejudice to Company’s other rights, the Customer shall pay to Company an amount equal to such underpayment as calculated in accordance with the Fees for each such User Account within ten business days of the date of the relevant audit.

   3.3 The Customer shall comply with the Terms of Use in relation to the Application and Platform and shall ensure that its Users also comply.

   3.4 Whenever Company reasonably suspects that there has been a breach of the Terms of Use, the Customer shall permit Company to audit all Applications and Customer‘s content to ensure compliance with the Terms of Use by the Customer and all Users. Such right to audit shall be exercised at Company’s expense, with reasonable prior notice and in such a manner as not to substantially interfere with the Customer’s normal conduct of business. For clarity, the parties acknowledge that Company is not obliged to carry out any such audit.

   3.5 If the Customer becomes aware that the Application or a User’s use of the Application or Service breaches the Terms of Use, the Customer shall suspend the relevant User Account and that User’s access to the Application and Platform.

   3.6 If the Customer is in breach of this Section, Company may (but shall not be obliged to) disable the Customer’s Application fronting the Platform and/or the relevant User’s access to the Application or any material that breaches the Terms of Use; and disable the relevant User Account for so long as the relevant breach remains unremedied, without liability or prejudice to its other rights against and without prior notice to the Customer or the relevant User.

   3.7 Notwithstanding any other provision in this Agreement, if there is a Security Event, Company may, without liability or prejudice to its other rights and without prior notice to the Customer or any User, remove the relevant Customer content and disable the use of the Application, any User Account and the relevant Application until the relevant Security Event has been resolved. Company shall give the Customer written notice as soon as is reasonably practicable of the nature of the relevant Security Event.

   3.8 The Customer shall not:

   3.8.1. except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means;

   3.8.2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;

   3.8.3. access all or any part of the Platform or the Service in order to build a product or service which competes with the Service and/or the Documentation;

   3.8.4. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform and/or the Service available to any third party except the Users with User Accounts who have agreed the Terms of Use;

   3.8.5. attempt to obtain, or assist third parties in obtaining, access to the Platform and/or the Service, other than as provided under this Section; or

   3.8.6. introduce, or permit the introduction of, any Virus or Vulnerability into the Platform and/or the Service.

   3.9 The Customer shall:

   3.9.1. prevent any unauthorized access to, or use of, the Platform and/or the Service and, in the event of any such unauthorized access or use, promptly notify Company; and

   3.9.2. comply with any further reasonable requests from Company governing the use of the Platform, Service, or the Brand Application.

   3.10 The rights provided under this Section are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer or any of Customer’s Users directly.

   3.11 Any Open-Source Software provided by Company may be used according to the terms and conditions of the specific license under which the relevant Open-Source Software is distributed, but is provided “as is” and expressly subject to the disclaimers set forth in the Service Agreement. Such terms and conditions shall govern such use to the extent that they expressly supersede this Agreement.

4. APPLICATION SERVICES
   4.1 Company shall, during the term of this Agreement:

   4.1.1. provide the Service and access to the Platform and make available the Documentation provided by Company to the Customer on and subject to the terms of this Agreement; and

   4.1.2. enable Users to connect via the internet to any Application that the Customer has deployed on the Platform and to use in accordance with this Agreement such of the Service as have been integrated into that Application.

   4.2 Company will, as part of the Service and at no additional cost to the Customer, provide the Customer with the Company’s standard customer support services during Normal Business Hours. Company may amend the Support services in its sole and absolute discretion from time to time.

   4.3 Notwithstanding any other provision in this Agreement, the Customer acknowledges and agrees that it is responsible for technical support of the Application.

   4.4 From time to time Company may, at entirely its own discretion, modify the Platform or Service by issuing updates and make new features, undertake maintenance developments and fixes, works, functionality, applications or tools available in respect of the Application, Platform and/or Service, provided that Company shall give the Customer written notice of any such material modifications and any such material new features, functionality, applications or tools.

5. CUSTOMER OBLIGATIONS
   5.1 The Customer acknowledges and agrees that:

   5.1.1. Company may include the Customer’s name or the Customer’s Marks in a list of Company’s customers in any medium or in any link from the Platform to the Customer’s website; and

   5.1.2. Company may refer to the Customer, orally or in writing, as a customer of the Service for promotional, marketing, and financial reporting purposes.

   5.2. The Customer will:

   5.2.1. Provide all necessary cooperation in relation to this Agreement;

   5.2.2.Provide all necessary access to such information as may be required by Company to provide the Application, Platform and/or the Service, including security access information and configuration services;

   5.2.3.without affecting its other obligations under this Agreement, comply with all applicable laws and regulations, including any of those relating to the export of data and software, with respect to its activities under this Agreement;

   5.2.4. carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Company may adjust any agreed timetable or delivery schedule as reasonably necessary;

   5.2.5. ensure that the Users use the Platform and the Service in accordance with the terms and conditions of this Agreement, Terms of Use and shall be responsible for breach thereof caused or contributed to by any acts or omissions on the part of any User or Client;

   5.2.6. obtain and shall maintain all necessary licenses, consents, and permissions that are necessary for the Customer to hold to allow Company, its contractors, and agents to perform their obligations under this Agreement, including provision of the Service;

   5.2.7.ensure that its network and systems comply with the relevant specifications provided by Company from time to time;

   5.2.8. not duplicate, share, disseminate in any way, modify or attempt any of such actions in relation to the Marks, the Platform, the Service, the Software or any of Company’s intellectual property whatsoever either by itself or with any third party;

   5.2.9. assist Company upon its request concerning responding to and preventing any actual or likely infringement of any of Company’s Intellectual Property Rights or any User doing (or omitting to do) anything that is likely to lead to the Customer being in breach of this Agreement;

   5.2.10. be solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Company’s data centers, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s or any User’s network connections or telecommunications links or caused by the internet; and

   5.2.11. as between the parties, be responsible for responding to all third party requests concerning the use of the Platform and/or the Service by the Customer or any User.

   5.3. The Customer assumes sole responsibility for results obtained from the use of the Platform and/or the Service by the Customer or any User, and for conclusions drawn from such use. Company shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Company by the Customer or any User in connection with the Platform and/or Service, or any actions taken by Company at the Customer’s direction.

   5.4. If Customer purchases a Branded Application:

   5.4.1. The Customer shall set up (and pay for ongoing) the relevant Google Development Accounts or Apple Development Accounts (individually each an “Account”, or together “Accounts”), as the case may be, it requires in order to set up the Application and shall notify Google and Apple (with copy to Company), as the case may be, that Company is to be the only administrator of such Accounts that may manage the applications within such Accounts. The Customer will not attempt to manage the Accounts in any way.

   5.4.2. The Customer shall give Company notice and details of each Account set up by the Customer (including all access details) relating to this Agreement and shall give Company free unfettered access at all times to all the Accounts in order that Company can administer such Accounts for the purposes of providing access to and use of the Platform and/or the Service by the Customer and Users and to publish and develop applications through such Accounts. In addition, Company shall not be removed from an administration role within the developer account until the agreed subscription has been terminated. Upon termination of this Agreement and cessation of the Application being a web sub-domain of Company, the Customer will notify Google or Apple (with copy to Company), as the case may be, of Company’s cessation as the Accounts’ administrator as and how instructed by Company.

   5.4.3.The Customer will ensure that it has all necessary appropriate consents from the Users in place to enable lawful transfer of their personal data to Company as its processor for the duration and purposes of this Agreement so that Company may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer’s behalf and, without limitation, the Customer shall ensure that all Users have been informed of, and have given and maintained their consent to permit access, monitoring, use and disclosure of all User Content by the Customer or Company in accordance with this Agreement.

   5.4.4. The Customer warrants that it has and will maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations under this Agreement.

6. THIRD PARTY PROVIDERS
   The Customer acknowledges that the Service may enable or assist it or any of the Users to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does, and the Users do, so solely at its own risk. Company makes no representation or commitment to the Customer or any User and shall have no liability or obligation to the Customer or any Users whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer or any User (as the case may be), with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer or the relevant User (as the case may be) and the relevant third party, and not Company. Company recommends that the Customer and Users refer to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. Company does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Platform or the Service.

    

7. PROPIETARY RIGHTS
   The Customer acknowledges and agrees that Company and/or its licensors is and shall remain the legal and beneficial owner of all Intellectual Property Rights in the Platform, the Service (whether integrated into  a Application or not), the integrated elements constituting the Service, the Software, Company’s Marks and any documentation produced by Company in connection with any of the foregoing. For the avoidance of doubt, nothing in this Agreement assigns or transfers to the Customer or any User any Intellectual Property Rights in the Platform, the Service (whether integrated into a Application or not), the integrated elements constituting the Service, the Software, Company’s Marks and any documentation produced by Company in connection with any of the foregoing. Company confirms that it has all the rights in relation to the Service and Company’s Marks that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement. If the Customer wishes to display Company’s Marks in relation to its use of the Service, the Customer shall first obtain a written license to do so from Company and comply with the Mark Guidelines.
   
   

SCHEDULE 1

MARK GUIDELINES

Each party hereby agrees as follows:

1. The Marks must be shown in the exact form in which it is given by the Mark holder.
2. The Marks are only to be used for the purposes of performing the obligations in this Agreement or the actions contemplated by this Agreement.
3. All uses by the Customer of Company Marks shall be in accordance with such quality control standards as Company may promulgate from time to time. The Customer shall refrain from all uses of the Company Marks to which Company objects.
4. The Customer shall not, without Company’s prior written consent in each instance, use any Company Mark in advertising, publicity, marketing or other promotional materials or activities.
5. The Customer shall submit to Company in advance for its approval any marketing materials, and a mock-up of any web pages, which refer to Company, any Company Mark, the Platform or the Service.
6. Any license that may be granted by Company to the Customer to use any of Company’s Marks shall be a non-exclusive, non-transferable, non-assignable, royalty-free license to use such Marks solely for the purposes of exercising the Customer’s rights and performing its obligations under this Agreement.
7. All promotional literature and other materials prepared by the Customer in connection with its promotional obligations under this Agreement shall bear any appropriate copyright and trade mark notices as prescribed by Company.
8. The Customer shall not use, register or attempt to register in any jurisdiction, or otherwise appropriate or adopt, any name, mark or logo that is confusingly similar to any of Company’s Mark or will dilute the distinctive nature of any of Company’s Marks.
9. At no time during the Subscription Term or thereafter shall the Customer attack, challenge or file any application with respect to any Company Mark.